European Court of Human Rights

 

 

 

FORMER FIFTH SECTION

 

 

 

 

 

 

CASE OF ŠUMBERA v. THE CZECH REPUBLIC

 

(Application no. 44410/09)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

(Just satisfaction - Striking out)

 

 

 

STRASBOURG

 

11 June 2015

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Šumbera v. the Czech Republic,

The European Court of Human Rights (Former Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          André Potocki,
          Helena Jäderblom, judges,
          Zdeněk Kühn, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 19 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 44410/09) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 Augut 2009 by a Czech national, Mr František Šumbera (“the applicant”), who was born in 1945 and lives in Svitavy. He was represented before the Court by Ms D. Křápková, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.

2.  Mr Karel Jungwiert, the judge elected in respect of the Czech Republic, was unable to sit in the case (Rule 28). Accordingly, the President of the Chamber decided to appoint Mr Zdeněk Kühn to sit as an ad hoc judge (Rule 29 § 1(b)).

3.  In a judgment delivered on 3 July 2014 (“the principal judgment”), the Court decided to join the application to four other applications (nos. 37926/05, 25784/09, 36002/09 and 65546/09) and held that there had been a violation of Article 1 of Protocol No. 1 (see R & L, s.r.o. and Others v. the Czech Republic, nos. 37926/05, 25784/09, 36002/09, 44410/09 and 65546/09, § 127 and points 1 and 3 of the operative provisions).

4.  Under Article 41 of the Convention the applicant claimed CZK 1,084,535 (EUR 39,582) in respect of pecuniary damage, CZK 600,000 (EUR 21,898) in respect of non-pecuniary damage, CZK 80,000 (EUR 2,920) for costs and expenses incurred in the proceedings before the domestic courts and CZK 500,000 (EUR 18,248) for those incurred in the proceedings before the Court (see R & L, s.r.o. and Others, cited above, § 140).

5.  Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (see R & L, s.r.o. and Others, cited above, § 142 and point 4 of the operative provisions).

6.  On 19 December 2014 the Court received the following common declaration signed by the Government and the applicant on 18 and 3 December 2014 respectively:

“The Government of the Czech Republic, represented before the European Court of Human Rights by their Agent Mr Vít Alexander Schorm (“the Government”),

and

Mr František Šumbera, represented by his counsel Ms Dita Křápková (“the Applicant”),

declare that:

1. they have reached a friendly settlement of case no. 44410/09 - Šumbera v. the Czech Republic ("the Application") pending before the European Court of Human Rights (“the Court”),

2. the Government will pay the Applicant, within three months from the publication of the judgment by which the Court strikes the remainder of the Application out of its list of cases pursuant to Article 39 § 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a total amount of EUR 13,000 (thirteen thousand euros), converted into CZK (Czech korunas) at the rate applicable on the date of payment, to a bank account that the Applicant will specify to the Ministry of Justice without undue delay upon request,

3. the above-mentioned sum is to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the Applicant; the Government note in this context that according to Article 3 § 4(d) of Act no. 586/1992, on income tax, payment based on a friendly settlement of a case before the Court is not subject to personal income tax,

4. if the above-mentioned amount is not paid within the said period of three months, then from the expiry date of that period until payment, a simple interest on the amount shall be paid at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points,

5. the Applicant waives any further claims against the Czech Republic based on the facts of the part of the Application that was declared admissible, and regards this friendly settlement as the final resolution of that part of the Application,

6. neither the Government nor the Applicant will request the remainder of the Application to be referred to the Grand Chamber,

7. the Applicant takes due note of the fact that in order to bind the Czech Republic the terms of this declaration are subject to further approval by the Government in accordance with applicable procedures; the Government shall notify the declaration to the Court after the approval has been given.”

THE LAW

7.  Following its principal judgment the Court has been informed that an agreement has been reached between the Government and the applicant with respect to the latter’s claims under Article 41 of the Convention.

8.  Having regard to its terms, the Court finds this agreement equitable within the meaning of Rule 75 § 4 of the Rules of Court and that it is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). Consequently, it considers it appropriate to strike the remainder of the case out of the list (Article 37 § 1(b) of the Convention and Rule 43 § 3).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to disjoin the application from the applications to which it had been joined (applications nos. 37926/05, 25784/09, 36002/09 and 65546/09);

 

2.  Decides to strike the remainder of the application out of its list of cases;

 

3.  Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber.

 

Done in English, and notified in writing on 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                                Mark Villiger
       Registrar                                                                              President